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This chapter considers the relationship between the Protocol and issues of identity. Brexit, in some accounts, does not change the 1998 Agreement’s citizenship provisions. The people of Northern Ireland remain able ‘to identify themselves and be accepted as Irish or British, or both, as they may so choose’. It does not alter the obligation on the UK government to maintain rigorous impartiality between these identities in Northern Ireland’s governance. On a deeper level, however, questions of identity in Northern Ireland are central to the idea of Brexit and have profoundly shaped the reality of Brexit.
This paper presents the findings of a comparative statistical study examining the application and trends in the deployment and utilisation of European Union (EU) law before the Scottish and Irish courts over a 10-year period from 2009–2018. The paper poses the question, how does European integration impact on the domestic legal systems of EU Member States due to the increasing volume, and significance, of cases where EU law is raised and applied within domestic legal systems? The research presented is of particular relevance in light of Brexit. It allows prescient reflection on the significant disruption and impact the United Kingdom's exit from the EU is likely to have on areas of domestic law which are highly integrated with EU law. It highlights the potential difficulties implicit in attempting to unpick over 40 years of assimilation of EU law and principles into Scots law. These research outcomes should lead to further reflection and debate on the role of EU law and its impact on judicial decision-making in the Scottish and Irish legal systems in general.
The idea that EU treaties have become too difficult to amend is a recurring one. This Article explores changing national constitutional rules and norms in the consent stage of EU treaty making in twenty-eight Member States between 1950 and 2016, asking how parliaments, people, and courts came to be much more significant for consent, what the consequences of this shift are, and offering some tentative proposals as to how the challenges this raises could be addressed. EU treaty making has become more complex, but we argue that treaties should be more rather than less difficult to amend where concerns over two-level legitimacy rather than two-level games predominate.
European Union (EU) member states are not unusual in granting a role to parliaments in the consent stage of treaty making, but the increased involvement of legislatures since 1950 is striking nonetheless. Simple majority voting was the norm when it came to the parliamentary approval of the EU’s founding treaties. Today, many member states rely on reinforced majority voting and many more parliamentary chambers are involved. This chapter offers a systematic comparison of the changing constitutional rules and norms governing parliamentary involvement in EU treaty making in each of the Union’s member states. On the basis of this analysis, we present the first of our three ratification scales.
The involvement of national courts in EU treaty making was once controversial, but it is now commonplace. This chapter takes a closer look at the rise of courts at the consent stage of EU treaty making. It provides a detailed examination of changing constitutional rules and norms concerning the prior constitutional review of treaties in each of the EU’s twenty-eight member states. This analysis focuses, in particular, on the question of who, if anyone, can trigger such reviews. On the basis of this analysis, we present the third of our three ratification scales.
The European Union (EU) is an important test case for scholars of treaty making because the manner in which the EU and its member states make treaties has changed significantly since 1950. The EU’s founding treaties were negotiated by governments in a tightly sealed intergovernmental setting. Today, parliaments, the people and courts play a prominent role in the various stages of treaty making. This introductory chapter situates our study of EU treaty making within wider historical and scholarly contexts. It introduces our theoretical and methodological approaches and central argument.
This book considers two explanations for the rise of the people, parliaments and courts in European Union (EU) treaty making since 1950. The first follows Robert Putnam’s classic two-level game approach by asking whether governments are tying their hands to gain tactical advantages in treaty negotiations. The second sees the transformation of treaty making as a response to – and reflection of – the crisis of legitimacy facing the EU and its member states. This chapter recalls the logic of tying hands in two-level games before offering a trust-based perspective on the EU’s legitimacy problems. It considers – from these theoretical vantage points – why the constitutional rules and norms surrounding treaty making have changed and how national governments might respond to having their hands tied too tightly.
European Union (EU) treaty making was once dominated by Intergovernmental Conferences (IGCs), but the European Parliament, national parliaments and the Court of Justice of the EU have gradually acquired a role in the negotiation stage. This chapter explores this partial eclipse of the IGC, drawing on official documentation and historical accounts of EU treaty negotiations from the Schuman Plan Conference in 1950 to almost a decade of treaty making under the Lisbon Treaty. Member states ultimately involved other actors, it is argued, to address problems of trust facing the Union and its member states. EU heads of state or government drove such changes, it is noted, while increasing their own grip on the processes through which EU treaties are negotiated.
There is a broad consensus in the scholarly literature that EU treaty-making rules and norms should become more flexible. Such views are consistent with the two-level game approach, but they could, the two-level legitimacy approach warns, amplify problems of trust in the EU and national governments. This chapter critically examines the case for reforming EU treaty making, as viewed from the competing theoretical perspectives at the heart of this volume. It interrogates the case for (1) unanimity in treaty making, (2) the regulation of national referendums, (3) a pan-European referendum, (4) time locks on treaty reforms, (5) citizen-led treaty making, (6) judicial and parliamentary oversight, (7) a European Convention on the Law of Treaties and (8) allowing treaties to fail.